Environmental, Health and Safety Update


Court affirms decision to order "innocent" landowner to remediate its property

The Ontario Divisional Court recently upheld  the Environmental Review Tribunal’s decision, which in turn upheld an order  that required the City of Kawartha Lakes to remediate the contamination on its land resulting from a heating oil spill on a neighbouring property. The Court noted that the City was an “innocent” party that had not caused the spill and all the parties, including the Ministry of the Environment (MOE), agreed that the City was an innocent owner.

However, the Court found that section 157.1 of the Environmental Protection Act (EPA) amounted to an "owner pays" mechanism (in contrast to the "polluter pays" principle), since this section allows the MOE’s provincial officer to make an order against an owner if that is necessary or advisable to protect the environment (which the Court indicated is the sole purpose of the EPA). Therefore, to be subject to a valid order under section 157.1, a property owner does not need to be at fault.

In reaching its decision, the Court noted that the City (and other recipients of orders) may still seek to apportion liability between themselves by bringing civil claims.That said, given the time-sensitive nature of protecting the environment under the circumstances, the Court acknowledged that the City was required to comply with the order before the apportionment of liability – or even before the City’s appeal of the order.

For further information, please see The Corporation of the City of Kawartha Lakes decision.

Ministry proposes draft policy for developing renewable energy on Crown lands

On June 15, 2012, the Ontario Ministry of Natural Resources (MNR) published for public comment a draft policy to direct the way the government will manage Crown lands to support renewable energy while balancing social, economic and ecological interests. More specifically, the draft policy includes direction on the scope and application of the policy, overarching objectives and supporting actions that will guide the MNR’s decision making for this purpose, as well as establishing the basis for new application procedures. The MNR is accepting comments on this draft policy until October 13, 2012.

During the consultation on this draft policy, the MNR has indicated that existing policies and procedures will remain in effect, although they may be subject to amendment in the interim to facilitate or enable implementation of the Green Energy Act and energy procurement.

For further information, please see Environmental Registry # 011-6005.

Ontario proposes bill and strategy to protect the Great Lakes

On June 6, 2012, the Ontario government introduced Bill 100, the Great Lakes Protection Act, 2012 (GLPA), which would give the province greater powers to regulate the Great Lakes. The aim of the GLPA is to protect and restore the ecological health of the Great Lakes. To this end, it would establish the Great Lakes Guardians’ Council as a forum for interested parties to identify policy priorities, and it would empower relevant ministries to take targeted action on priority areas. Thegovernment has also developed a draft strategy, titled Ontario’s Draft Great Lakes Strategy, to explain previous efforts to protect, conserve and restore the Great Lakes and to describe what the government is doing now and its proposed future strategy. The GLPA requires that Ontario’s Draft Great Lakes Strategy be established and regularly reviewed and amended. The government is accepting comments on the GLPA and draft strategy until August 7, 2012.

For further information, please see the MOE news release and Environmental Registry # 011-6461 and Environmental Registry # 011-6418.


Federal Court holds that sufficient consultations with First Nations occurred

In Ka’A’Gee Tu First Nation v. Canada (Attorney General), the Federal Court held that the Crown had discharged its obligation to consult with First Nation communities after almost two years of consultations over an oil and gas development project in the Northwest Territories. The Court held that the Crown’s effort was sufficient because it fully funded First Nation participation (including its legal counsel); First Nation representatives attended all meetings and were given multiple opportunities to share their concerns; records and minutes were kept from all meetings; and information was shared openly between all involved parties. The Court emphasized that the extent of the duty to consult depends on the facts of each case, and in assessing whether consultations with First Nation communities were sufficient, courts will focus on the reasonableness of Crown conduct and on the consultation process itself rather than the outcome.

For further information, please see Ka’A’Gee Tu First Nation decision.

National Round Table releases report on climate change initiatives

On June 13, 2012, the National Round Table on the Environment and the Economy (NRTEE) reported that, given the federal and provincial climate change mitigation measures currently in place, Canada will not meet its greenhouse gas (GHG) emission reduction targets for 2020. The NRTEE report notes that although Canada has made progress in meeting these targets, this has largely been attributable to provincial policies. The federal government’s current target is to reduce Canada’s GHG emissions by 17% below 2005 levels by 2020.

For further information, please see Reality Check: The State of Climate Progress in Canada.


Quebec proposes linkage of cap-and-trade system with California’s system

On June 8, 2012, the Quebec government proposed draft amendments to its Regulations respecting the cap-and-trade system for greenhouse gas emission allowances, originally enacted in December 2011. These amendments would link Quebec’s cap-and-trade system with California’s system to create integrated markets for GHG emission allowances and offsets. The draft amendments also propose three protocols for the development of emission-reduction projects that would be eligible for offset credits issued by Quebec.In particular, the draft amendments would

  • explicitly recognize emission allowances and offsets approved by the California Air Resources Board (CARB) for compliance purposes in Quebec (in other words, regulated emitters in Quebec could satisfy their GHG emission-reduction requirements with, among other things, CARB-approved compliance instruments);
  • provide for joint California-Quebec auctions of emission allowances and establish a joint reserve price for auctioned allowances;
  • include CARB-approved allowances and offsets in the determination of holding limits applicable to regulated emitters and registered participants in Quebec, and increase those holding limits accordingly; and
  • establish protocols for three types of projects eligible for offset credits: CH4 (methane) destruction at certain agricultural operations, the capture of gas from landfill sites, and the destruction of ozone-depleting substances contained in insulation recovered from appliances.

For further information, please see the MDDEP news release.

United States

Appellate court upholds EPA’s climate change rules

On June 26, 2012, in The Coalition for Responsible Regulation Inc. v. Environmental Protection Agency, the U.S. Court of Appeals for the District of Columbia Circuit upheld two Environmental Protection Agency (U.S. EPA) rules on GHG emissions and dismissed the standing of the petitioners to challenge two others.In particular, the Court upheld the U.S. EPA’s threshold finding that GHG emissions endanger public health and that the U.S. EPA therefore has the authority to regulate GHG emissions under the Clean Air Act (CAA).The Court reached this decision while recognizing that residual uncertainty remains regarding the science of climate change.In light of this decision, the Court also upheld the U.S. EPA’s "tailpipe rule," which limits GHG emissions from cars and light trucks sold in the United States.

The Court also found that the petitioners did not have standing to challenge the U.S. EPA’s "timing rule" and "tailoring rule" because they did not show that these rules caused any injury to the petitioners.The U.S. EPA established the timing and tailoring rules to ensure that the legal effects of the tailpipe rule would allow for the practical implementation of a permitting program for GHG emissions from major stationary sources. Without the timing and tailoring rules, the U.S. EPA would have been required under the CAA to regulate stationary sources with considerably lower GHG emissions, and regulate them significantly sooner, than the U.S. EPA’s regulations currently provide.

For further information, please see The Coalition for Responsible Regulation Inc. decision.

Appellate court confirms that SEQRA does not mandate economic feasibility analysis

In Kirkel Development Ltd. v. Planning Board of Town of Cortlandt, a New York appellate court ruled that environmental reviews under the State Environmental Quality Review Act (SEQRA) do not require an assessment of a project’s economic feasibility. The Court upheld an environmental review by the Planning Board that reduced the number of lots in a subdivision proposal for Cortlandt, N.Y., from 19 to 16. This reduction was required to comply with the town’s regulations for maintaining steep slopes and forests that provide habitats and migration routes for local wildlife. The developer sued, arguing that these changes rendered the project economically unfeasible. In upholding the Planning Board’s decision, the Court wrote, "Contrary to the petitioner’s contention, SEQRA does not require a lead agency to take a ‘hard look’ at the economic feasibility of a project."

For further information, please see the Kirkel Development Ltd decision.




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